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Burglary: Guidelines on Sentences to be Imposed for Domestic Burglary
R v McInerney; R v Keating
Court of Appeal, Criminal Division (2002) The Times 20 December, [2002] EWCA Crim 3003
 

And
 
Statement in Response to Inaccurate Comments on the Guidelines Issued by the Court of Appeal as to the Sentencing of Domestic Burglars
Court of Appeal 14 January 2003

 
Keywords
 
Powers of Criminal Courts (Sentencing) Act 2000, s. 111; Criminal Justice Act 1991, s. 26; Public Order Act 1994, sch 10; Sentencing Advisory Panel; domestic burglary; Community Sentence; aggravating and mitigating factors

 
The statute

 
Burglary:
 
(1) A person is guilty of burglary if
(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or
(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.
(2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm or raping any person therein, and of doing unlawful damage to the building or anything therein.
(3) A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding
(a) where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years;
(b) in any other case, ten years.
(4) References in subsections (1) and (2) above to a building, and the reference in subsection (3) above to a building which is a dwelling, shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is [Theft Act 1968, s. 9, as amended by the Criminal Justice Act 1991, s. 26 and the Criminal Justice and Public Order Act 1994, sch. 101.
 

Lord Woolf CJ, giving the judgment of the court, said that the following guidance was the result of advice from the Sentencing Advisory Panel. It only applied directly to sentences in connection with domestic burglaries where the trespass was accompanied by theft or an intention to steal and it was to be read subject to the need to have regard to the particular circumstances of the offence, its effect upon the victim and the record of the offender, not only in other cases of domestic burglary but generally. Section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 created a presumption that the sentence should be at least three years' imprisonment for a third domestic burglary. However, if the offender could show that there were specific circumstances which related to the offences or the offender which made that sentence unjust in all the circumstances, then the presumption would be rebutted. As the court read s. 111, it gave the sentencer a fairly substantial degree of discretion as to the categories of situations where the presumption could be rebutted.
 

The panel's proposals
 
A standard burglary A 'standard' domestic burglary had some of the following features: it was committed by a repeat offender; it involved the theft of electrical goods or personal items; damage was caused by the break-in itself; some turmoil in the house, such as drawers upturned or damage to some items, occurred; no injury or violence but some trauma was caused to the victim.
 

Aggravating and mitigating features
 
The panel's aggravating and mitigating factors were examples and not an exhaustive list. They were divided into two categories. There was no clear line between them and they could overlap.
 
(1) The high-level aggravating factors were: force used or threatened against the victim; a victim injured (as a result of force used or threatened); the especially traumatic effect on the victim, in excess of the trauma generally associated with a standard burglary; professional planning, organisation or execution; vandalism of the premises, in excess of the damage generally associated with a standard burglary; the offence's being racially aggravated; a vulnerable victim deliberately targeted (including cases of 'deception' or 'distraction' of the elderly).
 
(2) The medium-level aggravating features were: a vulnerable victim, although not targeted as such; the victim being at home (whether daytime or night-time burglary); goods of high value being taken (economic or sentimental); the burglars working in a group.
 
The number of offences might indicate that the offender was a professional burglar, which would be a high-level aggravating feature, but where they did not, the number could still be at least a medium-level aggravating feature. The fact that the offender was on bail or licence or that the offence was committed out of spite could also be aggravating features. The panel, rightly, did not seek to indicate what percentage uplift should result from the presence of either the high-level or medium-level factors. They indicated, however, and the court agreed, that it was appropriate for the sentencer to reflect the degree of harm done, including the impact of the burglary upon the victim whether or not the offender foresaw that result or the extent of that impact. If the offender foresaw a result of the offending behaviour then that increased the seriousness of the offence.
 

Mitigating features (again not an exhaustive list) were:
 
A first offence; nothing, or only property of very low value, stolen; the offender's playing only a minor part in the burglary; no damage or disturbance to property. The fact that the crime was committed on impulse might also be a mitigating factor.
 
If a burglary was committed at night that made it more likely that the premises were occupied. In addition, an intrusion into an occupied home must be more frightening to the occupants if they found that they had intruders at a time when they were in the dark, particularly if they were woken from their sleep. A confrontation with the householder by the burglar could amount to an aggravating feature. It was also necessary to take into account other factors, including a timely plea of guilty. The offender's age or state of health, both physical and mental, could be a mitigating fact; so could evidence of genuine remorse, response to previous sentences and ready cooperation with the police. The offender's criminal record was significant. In judging the record it was necessary to take into account the type of offence for which the offender had previously been convicted and the number of offences which were considered on any particular occasion. The efforts which an offender had or had not made to rehabilitate himself were also important.
 
As to the appropriate sentencing under s. 111, it had to be borne in mind that an offender convicted of a single domestic burglary would accrue a qualifying conviction. Equally, an offender convicted on one occasion of three burglaries who asked for another three burglaries to be taken into consideration would also only accrue one qualifying offence. The totality of the actual criminal behaviour was important.
 

The panel's suggested starting points
 
In relation to adult offenders, not taking into account any aggravating or personal mitigating factors or the discount for a guilty plea, and in relation to a completed, as opposed to an attempted, burglary of domestic premises, the panel recommended:
 
(a) for a low-level burglary committed by a first-time domestic burglar (and for some second-time domestic burglars), where there was no damage to property and no property (or only property of very low value) was stolen, the starting point should be a community sentence;
(b) for a domestic burglary displaying most of the features of the standard domestic burglary but committed by a first-time domestic burglar, the starting point should be a custodial sentence of nine months. The starting point for a second-time domestic burglar committing such an offence should be a custodial sentence of 18 months. When the offence was committed by an offender with two or more previous qualifying convictions for domestic burglary, the starting point was a custodial sentence of three years, i.e. the presumptive minimum now prescribed by law;
 
(c) in the case of a standard domestic burglary which additionally displayed any one of the 'medium relevance' factors referred to above, but committed by a first-time domestic burglar, the starting point should be a custodial sentence of 12 months. The starting point for a second-time domestic burglar committing such an offence should be a custodial sentence of two years. When the offence was committed by an offender with two or more previous convictions for domestic burglary the starting point was a custodial sentence of 3.5 years.
 
(d) in the case of a standard domestic burglary which additionally displayed any one of the 'high-relevance' factors mentioned above but was committed by a first-time domestic burglar, the starting point should be a custodial sentence of 18 months. The starting point for a second-time domestic burglar committing such an offence should be a custodial sentence of three years. When the offence was committed by an offender with two or more previous convictions for domestic burglary the starting point was a custodial sentence of 4.5, years. The presence of more than one 'high-relevance' factor could bring the sentence for an offence at that level significantly above the suggested starting points.
 

The court's starting points
 
The court endorsed the panel's recommendations as to the starting points contained in (d) and also the non-custodial approach recommended in (a). However, in relation to (b) and (c) the court adopted a different approach. An unqualified approach under (b) and (c) would reinforce the flaws in present sentencing policies. Its effect on the present deeply depressing pattern of reoffending would be limited. There were some cases where the clang of the prison cell door for the first time could have a deterrent effect but the statistics of reoffending suggested that the numbers who would be deterred by their first experience of incarceration were not substantial. If they were not deterred by their first period of incarceration, then it became even less likely that a moderately longer sentence (which equally gave no opportunity for tackling reoffending behaviour) would achieve anything.
 
The court had not forgotten the importance of maintaining the public's confidence in the criminal justice system and protecting the public from offending behaviour, particularly offending behaviour such as domestic burglary which caused the public great distress. On the contrary, it was the court's intention that its guidance should provide greater protection than was provided at present. The court therefore proposed that, instead of adopting a stepped approach as suggested by the panel in (b) and (c) in cases in which courts would otherwise be looking to starting points of up to 18 months' imprisonment, the initial approach should be to impose a community sentence subject to conditions that ensured that the sentence was an effective punishment and one which offered action on the part of the Probation Service to tackle the offender's criminal behaviour and, when appropriate, would tackle the offender's underlying problems, such as drug addiction. If, and only if, the court was satisfied the offender had demonstrated by his or her behaviour that punishment in the community was not practicable should the court resort to a custodial sentence.
 
It would be pointless to try and identify all the factors that would indicate that a community disposal was not a practical option but they might relate to the effect of the offence on the victim, the nature of the offence or the offender's record. Such a new approach should and was intended to provide better protection for the public and to result in some reduction in the use of custody. If, of course, an offender did not comply with the requirements of a community punishment, and in particular if he committed further offences during the currency of that sentence, then he should be resentenced. The fact that an offender had not complied with the requirements of a community punishment would be a strong indicator that a custodial sentence and possibly a substantial sentence was necessary. Where a custodial sentence was necessary, then it should be no longer than necessary. In the case of repeat offenders and aggravated offences, long sentences would still be necessary as indicated in (b), (c) and (d) above. As to the incremental increases, the increase in sentencing levels should slow significantly after the third qualifying conviction. It was necessary to retain a degree of proportionality between the level of sentence for burglary and other serious offences. The court drew attention to the important powers of court to make restitution and compensation orders. When appropriate those orders should always be made.
 

The Decision
 
A domestic burglar who, after a trial, would previously have received a sentence of 18 months' imprisonment or less should in future receive a community sentence, subject to conditions which ensured that it was an effective punishment and one which tackled the offender's criminal behaviour and, where appropriate, his underlying problems, such as drug addiction. A custodial sentence should only be resorted to if the offender had demonstrated by his behaviour that punishment in the community was not practicable.
 
The Court of Appeal, Criminal Division, so stated in (1) reducing the sentence imposed on McInerney on 22 May 2002 in the Crown Court from 5 years' to 31/7 years' imprisonment for one offence of burglary and (2) reducing the sentence imposed on Keating on 3 May 2002 in the Crown Court from 4 years' to 3 years' imprisonment for two offences of burglary.
 

Comment
 
These guidelines are a result of the Sentencing Advisory Panel's Report dated 9 April 2002 which applied only directly to sentences in connection with domestic burglaries where the trespass was accompanied by theft or an intention to steal, and it was to be read subject to the need to have regard to the particular circumstances of the offence, its effect upon the victim and the record of the offender.
 

This Report sounded alarm bells throughout the country, with newspaper headlines that the Lord Chief Justice has said that 'first-time burglars will not be sent to prison'. The Report has prompted some letters to The Times and no doubt many other newspapers because this is not the opinion of many people, who see this as sending the wrong signal to burglars.
A statement has been issued by the Court of Appeal in response to inaccurate comments on these guidelines made in the press. Its contents are printed here in full.
 


Statement in Response to Inaccurate Comments on the Guidelines Issued by the Court of Appeal as to the Sentencing of Domestic Burglars
Court of Appeal 14 January 2003
Sentences; burglary; guidelines on sentences to be imposed for domestic burglary; statement to correct inaccurate reporting
 

Purpose of the Statement
 
1. On 19 December 2002, judgment was given in R v McInerney; R v Keating (The Times, 20 December 2002). The judgment set out guidelines as to the sentencing of domestic burglars.
2. This statement does not modify, alter or retract any part of that judgment. Only the judgment must be referred to for the terms of the guidelines. The sole purpose of this statement is to correct inaccurate comments which are repeatedly being made as to the guidelines. Correction is vital, since, if the inaccuracies stand uncorrected, the public will be left with a totally wrong impression as to the guidelines. This could seriously harm the public, by reducing, without justification, their confidence in the criminal justice system. The media are urged to avoid this by giving full coverage to this statement.
 

Protection of Victims
 
3. It is wrongly suggested that the court is more concerned with the offenders than their victims. In fact, the court commenced its judgment by reaffirming the comments of Lord Bingham of Cornhill CJ in the previous guideline case of R v Brewster [1998] 1 Cr App R 220, 225-226. These reflect the long established approach that the consequences to the victim should always be of the greatest significance in determining the appropriate punishment. Lord Bingham CJ stressed that burglary is always a serious offence because it 'leaves the victim with a sense of violation and insecurity'. This is true 'even when the victim is unaware at the time that the burglar is in the house'. The judgment states that it is the intention of the court 'that the guidance . . . should provide greater protection [for the public] than is provided at present', given that burglaries cause 'great distress'. In the present case, the court gave effect to this principle by imposing respectively sentences of three-and-a-half and three years in the cases of McInerney and Keating while allowing their appeals.
 

The Starting Point is Not the End Point
 
4. It is also suggested that the court recommended that all first or second time burglars, who might otherwise be sentenced to up to 18 months' imprisonment, should be given a community sentence. In fact, the court made the recommendation of a community sentence as a starting point. A starting point does not mean any more than the point at which the sentencer should commence the determination of what is the correct sentence. In many cases it will not be the actual sentence because it will not be the appropriate sentence.
 
5. The court stated that 'the initial approach of the courts should be to impose a community sentence subject to conditions that ensure that the sentence is (a) an effective punishment and (b) one which offers action on the part of the Probation Service to tackle the offender's criminal behaviour and (c) when appropriate, will tackle the offender's underlying problems such as drug addiction'.
 
6. The court also stated that it would be 'pointless to try and identify all the factors that will indicate that a community disposal is not a practical option, but they may relate to the effect
of the offence on the victim, the nature of the offence or the offender's record'. For example, the court then added that 'in the case of repeat offenders and aggravated offences, long sentences will still be necessary'. It also accepted the Sentencing Advisory Panel's advice that 'there are some first time burglaries which on their facts are so serious that a sentence of three years or more might be appropriate'.
 

Who are Repeat Offenders?
 
7. Some misapprehension may have been caused by the court's adoption of the panel's definition of a standard burglary which included a reference to a repeat offender. The panel recognised that no definition is wholly appropriate. Although the court adopted the panel's definition of a standard burglary, it was made clear that sentencing courts should always take account of an offender's previous convictions. The court was not limiting this to repeated offences of burglary as has been suggested. This is absolutely clear because the court emphasised at the outset of the judgment that, in applying the guidance, it was necessary to have regard 'to the particular circumstances of the offence, its effect upon the victim and the record of the offender, not only in other cases of domestic burglary, but generally'. The court also stated that 'in the case of burglary ... the offender's criminal record is ... of more particular significance. In judging the record it is of course necessary to take into account the type of offence for which the offender has previously been convicted and the number of offences which were considered on any particular occasion'.
 

The Limited Effectiveness of Short Prison Sentences and the Advantages of Community Sentences
 
8. In the case of sentences of imprisonment for periods of up to 18 months, the protection provided to the public is limited because, as the judgment explains, only a quarter of the sentence may in fact be served. Prisoners serving sentences of 12 months are entitled to be released after six. In addition, the six months is reduced by a further 90 days during which the prisoner will be on home curfew. The practical result is that today a sentence of 12 months' imprisonment is likely to result in a prisoner returning to the community after three months. The Prison Service accepts that, in the case of short sentences, it is not in a position to tackle a prisoner's offending behaviour. In contrast, a community sentence can provide protection for three years during which a combination of tagging and curfew orders will keep the offender off the streets. These orders constitute a realistic and serious restriction on the offender's freedom. They may also tackle the offender's drug addiction, which is the cause of very many burglaries. In addition, this is supported by the potent sanction that, if the offender does not comply with the community sentence, he will be sentenced for the original offence and, as the judgment makes clear 'this will be a strong indicator that a custodial sentence and possibly a substantial sentence is necessary'.
 
9. A community disposal in the case of less grave burglaries also has the advantage that it will assist the Prison Service to deal more effectively with even more serious offenders. It will relieve the overcrowding in prisons which, at the present time, is undermining the efforts of the Prison Service to do this.
 

The Differing Gravity of Burglaries
 
10. Some media reports have suggested that the court regarded all burglaries as being of the same gravity. The judgment, however, points out that 'the seriousness of the offence can vary almost infinitely from case to case'. It can range from an impulsive act and an object of little value (for example reaching through a window to steal a bottle of milk) to an offence deliberately directed at the elderly or one 'accompanied by vandalism or any wanton injury to the victim'. The court also strongly supported and drew attention to Lord Bingham CJ's comment that 'whether a custodial sentence is required, and if so the length of such sentence, is heavily dependent on the aggravating and mitigating features' and 'usually to a lesser extent, the personal circumstances of the offender': R v Brewster [1998] 1 Cr App R 220, 225-226.
 

The Need for Imprisonment
 
11. It is stressed that, while the court intended that the number of offenders who would be sentenced to imprisonment should be reduced, this was only in the case of offences committed by non-persistent offenders and not where the number of offences indicated that the offender was a professional burglar. The court accepted the advice of the panel that the starting point for a second time domestic burglar committing an offence involving one of the high-level aggravating factors (such as force used or threatened against the victim) should be a custodial sentence of three years.
 

The Consistency of the Court's Approach
 
12. The court, in adopting this approach, was not, as has been suggested, acting inconsistently with its approach to street robbery offences, particularly those involving mobile telephones. As stated in the judgment, 'force used or threatened against the victim' is a high level aggravating factor. If violence is used or threatened, a community sentence for burglary is wholly inappropriate and a sentence of imprisonment is indicated.
 
13. Some commentators have suggested that the court was dramatically altering the approach to the sentencing of domestic burglars. In fact, it was doing no more than changing the emphasis. It is a well-established approach to sentencing that an offender should only be sentenced to imprisonment when this is necessary and then for no longer than necessary. The approach in the judgment, as the court stated, 'was intended to provide better protection for the public and to result in some reduction in the use of custody'.
 

These Guidelines are Not a Charter for Burglars
 
14. We hope we have said enough to make clear that the judgment is not a charter to offenders to commit burglary as has also been suggested. Nor is it a body blow to the efforts of the police to detect offenders who commit burglary. On the contrary, the principles in the judgment will act as a deterrent while at the same time contributing to achieving the reduction in reoffending that is so important if the public is to be protected.
 
15. We make this statement to correct the inaccurate reporting that has taken place, because of the danger that, if allowed to stand, the inaccuracies will unjustifiably undermine the confidence of the public in the criminal justice system in a manner totally unwarranted by the judgment.

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